Supreme Court upholds stepfather's sex assault conviction

Mar. 20, 2013

Written by

Free Press Staff Writer

The Vermont Supreme Court has denied an appeal filed by a Barre man convicted two years ago of repeatedly sexually assaulting his pre-teen stepdaughter.

Jurors convicted the man, now 43, at the end of his third trial in Vermont Superior Court in Burlington in 2011 of two counts of aggravated sexual assault. Judge Michael Kupersmith later sentenced the defendant to serve 40 years to life in prison.

The man maintained his innocence through the three trials and appealed his conviction to the Vermont Supreme Court.

The Burlington Free Press does not identify alleged victims of sex crimes without their consent and is withholding the names of the man and the woman in order to protect the privacy of the girl.

The justices on Friday denied the man’s appeal and affirmed the lower court’s decision. The stepfather had 14 days from that date to ask the court to reopen arguments in the case, according to Assistant Attorney General David Tartter, who represented the State of Vermont during the appeal.

“Prevailing on that is extremely rare,” Tartter said Wednesday. If the court denies the stepfather’s motion for reargument, or if the man fails to make that motion, he could still try other post-conviction avenues.

“Obviously, the odds of prevailing get worse as you move away from the appeal itself,” Tartter said.

Attorney William Nelson of Middlebury, who represented the stepfather during the appeal, did not immediately return a message left Wednesday morning seeking comment.

The Supreme Court justices heard arguments on whether the man should have been tried separately from his co-defendant, the girl’s mother, during their third trial, and whether the judge should have let that trial continue after the girl’s mother accepted a plea deal halfway through the proceeding.

“On the first day of jury draw for the third trial, counsel for (the mother) renewed the request for a separate trial, acknowledging that her request had been consistently rejected but wanting to preserve the issue despite the court’s ruling that it would be a joint trial,” the justices stated in the ruling filed Friday. “The defendant’s counsel then chimed in, ‘The same here, judge, on that issue.’”

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According to the justices, “Merely stating, ‘same here, judge,’ does not constitute a motion to sever” the cases.

In the middle of the third trial, the mother, then 43, accepted a deal with prosecutors and pleaded no contest to a lesser charge.

Although Kupersmith did not tell jurors about the deal, the stepfather’s attorney immediately asked the judge to declare a mistrial, saying jurors would infer that the mother had pleaded guilty and that the stepfather was therefore also guilty. Kupersmith denied that request, and instructed jurors “not to speculate” about the possible reasons for the mother's absence, and to disregard parts of the alleged victim’s testimony given earlier at trial.

The justices stated in the ruling that, “While the defendant suggests that more evidence of abuse came in as a result of being tried jointly with (the mother), he fails to appreciate that the evidence to which he refers was offered solely against (the mother). He fails to support his claim that he was prejudiced by (the mother’s) mid-trial absence or to show how the jury could have wrongly inferred his guilt from codefendant’s absence.”

The justices also refuted the stepfather’s claim that evidence related to the girl’s diary tainted the jury.

The mother pleaded no contest to sexual assault on a child. Kupersmith found her guilty of the lesser charge, sentenced her to time served in prison — more than three years — and ordered her held until her deportation to England, her native country.

Prosecutors charged the stepfather and mother in 2008 with repeatedly sexually assaulting the girl, and alleged that the mother invited other men home to sexually assault her daughter.

The couple’s first trial ended in a hung jury and the second in a mistrial.